MOORHEAD – Legal questions about a state law outlawing drivers from refusing to be tested for drunken driving isn’t as settled as Clay County’s top prosecutor thinks it is, a judge here says.

County Attorney Brian Melton has publicly criticized Clay County District Court Judge Steven Cahill in recent days for two cases in which Cahill dismissed charges filed under Minnesota’s implied consent law – which makes not consenting to a warrantless test of a driver’s blood alcohol content a crime.

Melton told reporters a decision by the Minnesota Court of Appeals established the law’s legality.

Cahill said Tuesday that decision is being appealed to the Minnesota State Supreme Court, and the March decision by a three-judge panel of the state appellate court has left doubt in many minds about whether the implied consent law squares with prior U.S. Supreme Court rulings on warrantless searches.

“It’s very much in the state of flux,” Cahill said of the test refusal laws. “It’s evolving almost monthly.”

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Cahill said his position is that the Minnesota Court of Appeals opinion got it wrong, in part because it makes no reference to any of the U.S. Supreme Court precedents on the Fourth Amendment. He described the appellate court opinion as claiming that a warrant isn’t needed for a blood alcohol content test if there’s enough probable cause to get a warrant, “which makes no sense at all to me and it makes no sense to the U.S. Supreme Court, either.”

“Many, many people seem to think it’s wrong and very poorly written,” Cahill said of the Minnesota Court of Appeals opinion, which stems from the case of William Bernard, a man arrested in South St. Paul for refusing a sobriety test.

Though he doesn’t believe it’s legal to make refusing a test a crime, Cahill said he does believe case law allows for a noncriminal penalty for a test refusal, such as revoking a driver’s license.

Melton has said he plans to ask to strike Cahill from future cases involving test refusal charges. Both the defense and the prosecution are allowed to remove a judge once in a case.

“He has a right to do that,” Cahill said.

The judge said it isn’t the first time Melton’s office has sought to remove him from certain kinds of cases. Prosecutors also ask for him to be taken off cases involving domestic violence because they think he’s too lenient, Cahill said.

Cahill said it’s “absurd” to say he’s lenient on domestic assault offenders.

A Clay County judge since 2006, Cahill is facing three challengers this year in his bid for re-election: Cheryl Duysen of Moorhead, Kenneth Kohler of Moorhead and Terry Graff of Sabin.

Voters will trim the slate of four candidates to two in a primary Aug. 12. The general election is Nov. 4.

Readers can reach Forum News Director

Dave Roepke at (701) 241-5542